The
following facts are undisputed. In the summer of 2015
Plaintiffs were looking to purchase a vehicle for their
family. Doc. 115, ¶ 1; Doc. 116 at 2 (stating that
Defendant does not contest ¶¶ 1-24 of Doc. 115).
Plaintiffs saw Defendant's advertisement for a used 2010
Infiniti QX56 with less than 36, 000 miles (“QX56,
” or “the Vehicle”). Doc. 115, ¶ 2. In
August 2015, Plaintiffs traveled from Iowa to Arizona to
purchase the Vehicle. Id., ¶ 3. Throughout the
sales process, Defendant represented to Plaintiff that the
Vehicle had less than 36, 000 actual miles. Id.,
¶ 4.

On
August 24, 2015, the parties entered into a Retail
Buyer's Order (“RBO”), in which Defendant
stated that the Vehicle had 35, 648 miles and Plaintiffs
agreed to purchase the Vehicle for $33, 359.75. Id.,
¶¶ 6-8. The RBO stated that the Vehicle “is
sold ‘AS IS - NOT EXPRESSLY WARRANTED OR
GUARANTEED.'” Doc. 117, ¶ 14; Doc. 120 at 1
(stating that Plaintiffs do not dispute ¶¶ 10-15 of
Defendant's separate statement of facts (Doc. 117)).
Plaintiffs put $3, 000 down, and financed the remaining
purchase amount through a credit union. Doc. 115, ¶ 9.

Plaintiffs
drove the Vehicle back to Iowa and took it to the Willis
Infiniti dealership for service. Id., ¶ 10. The
dealership informed Plaintiffs that service records showed
the Vehicle was serviced approximately four years earlier, on
September 29, 2011, at which time it had an odometer reading
of 46, 731 miles. Id., ¶ 11. After learning of
the mileage discrepancy, Plaintiffs immediately contacted
Defendant. Id., ¶ 14.

Between
October 6 and October 19, 2015, Plaintiffs reached out to
Defendant on four separate occasions - once by telephone and
three times by email - seeking a refund of the sales price,
but Defendant did not respond. Id., ¶¶
15-20. Plaintiffs have been forced to pay off their loan with
the credit union due to the reduced value of the Vehicle.
Id., ¶ 21. Plaintiffs would not have purchased
the Vehicle had they known it had more mileage than was
reflected by the odometer. Id., ¶¶ 22-23.

II.
Legal Standard.

A party
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Summary judgment is
appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, shows “that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). Summary judgment is also appropriate against a party
who “fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Celotex, 477 U.S. at 322. Only
disputes over facts that might affect the outcome of the suit
will preclude the entry of summary judgment, and the disputed
evidence must be “such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

III.
Plaintiffs' Motion for Summary Judgment.

Plaintiffs
seek summary judgment on their breach of contract claim on
the basis of breach of express warranty. Doc. 114 at 5-7.
Defendant argues that breach of express warranty was not
asserted in Plaintiffs' complaint and is a separate and
distinct claim. Doc. 116 at 1-10. Defendant also argues that
the RBO disclaimed any express warranty and that the mileage
statement in the RBO did not constitute an express warranty.

A.
Adequacy of Plaintiffs' Complaint.

In
their complaint, Plaintiffs plead ...

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